Bombay High Court
Tulsiram Haribhau Magar vs Mahatma Phule Krishi Vidyapeeth ... on 15 November, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1410 OF 1998
Mahatma Phule Krishi Vidyapeeth.
At Post and Taluka Rahuri,
District Ahmednagar.
...PETITIONER
-VERSUS-
1 Tulshiram Haribhau Magar,
Age Major,
R/o Mulanagar, Taluka Rahuri,
District Ahmednagar.
2 Judge, Labour Court,
Ahmednagar.
3 Member, Industrial Court,
Ahmednagar.
...RESPONDENTS
WITH
WRIT PETITION NO. 4193 OF 2016
Tulsiram Haribhau Magar,
Age : 68 years, Occupation : Nil,
R/o Mula Nagar, Taluka Rahuri,
District Ahmednagar.
...PETITIONER
-VERSUS-
Mahatma Phule Krishi Vidyapeeth,
At Post Vidyapeeth, Taluka Rahuri,
District Ahmednagar.
Through its Registrar.
...RESPONDENT
::: Uploaded on - 18/11/2016 ::: Downloaded on - 19/11/2016 00:53:11 :::
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...
Advocate for the University : Shri Pradeep Shahane.
Advocate for the Employee : Shri Barde Parag Vijay.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 15th November, 2016
Oral Judgment :
1 In Writ Petition No.1410/1998, Respondent Nos.2 and 3
being formal parties, stand deleted.
2 Rule in Writ Petition No.4193/2016. Rule made returnable
forthwith and heard finally by the consent of the parties along with Writ
Petition No.1410/1998.
3 While considering Writ Petition No.4193/2016, the learned
Advocates for the respective sides brought it to the notice of this Court
that the earlier Writ Petition No.1410/1998 filed by the Respondent/
University against the same Petitioner/ Employee has been admitted by
this Court on 15.10.1999 and interim relief was refused on the ground
that the Employee has been reinstated in service as a Majdoor. It was
brought to the notice of this Court by the University in the form of the
statement recorded on 15.10.1999 that the Employee has been reinstated
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in service as Majdoor in 1992. So also, his back wages were paid.
4 Considering the above, by the consent of the parties and since
the earlier Writ Petition was pending final hearing, I have taken up both
these petitions together.
5 For the sake of brevity and clarity, the Employee in these two
petitions is being referred to as "the Workman" and the Respondent, in the
second petition who is the Petitioner in the first petition, is being referred
to as "the University".
6 Writ Petition No.1410/1998 has arisen out of the judgment of
the Labour Court dated 10.08.1992 by which the Labour Court allowed
Complaint (ULP) No.56/1985 filed by the Workman and by setting aside
his termination dated 09.08.1985, has granted reinstatement with
continuity of service and full back wages w.e.f. 09.08.1985. By the
impugned judgment of the Industrial Court dated 22.07.1997, Revision
(ULP) No.79/1992 filed by the University has been dismissed.
7 This Court, by order dated 15.10.1999, has admitted the
petition and has held that the back wages payable to the Workman shall
be subject to the result of this petition. This order was passed after
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recording the statement of the University that the Workman was
reinstated as Majdoor in 1992. The order dated 15.10.1999 reads as
under:-
"Heard.
Leave to amend.
Rule. Expedited.
It is clarified that the back wages granted by the
Labour Court in the impugned judgment shall be
treated as back wages for the post of Mazdoor to
which the Original Complainant was reverted to,
during the pendency of this petition. Interim order
stands vacated and it is clarified that the payment of
back wages will be subject to the outcome of this Writ
Petition. Mr.Joshi, learned counsel also makes a
statement that the original Complainant has been
reinstated in service as Mazdoor in 1992."
8 It appears from the impugned judgment of the Labour Court
dated 10.08.1992 and the judgment of the Industrial Court dated
22.07.1997 that the Workman was terminated by the University by
attaching a stigma of unauthorized absenteeism. It is recorded by the
Courts below that the University has taken a specific stand that though the
Workman was terminated for the misconduct of unauthorized
absenteeism, no departmental enquiry was conducted. It appears from the
judgment of the Labour Court that the University has not pressed a
request to conduct a fresh enquiry.
9 It further appears from the judgment of the Labour Court that
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the University had taken a stand that the Workman had submitted false
information regarding his seniority and based on such a fraudulent act/
misrepresentation, he had acquired an order of appointment as a
Shepherd. His said appointment was on the Sheep Breeding Project. It was
in this backdrop that the order dated 08.08.1985 appointing the Workman
as a Shepherd (Meshpal), was withdrawn by the University and he was
terminated on 17.08.1985. A specific stand was taken that the Workman
himself has abandoned duties from 17.08.1985.
10 Ordinarily, this issue could have been gone into, but for the
fact that the said issue is of 17.08.1985 and which is practically 31 years
ago. Considering the second Writ Petition No.4193/2016 and the cause of
action originating from the said proceedings and more so in the light of
the fact that the University has paid the back wages to the Workman from
the date of his termination dated 17.08.1985 till his reinstatement in
1992, I am disposing of Writ Petition No.1410/1998 since I am inclined to
grant compensation to the Workman by taking into account the fact that
the charge of unauthorized absenteeism thereby, leading to abandonment
of service, was not proved by the University before the Labour Court. Writ
Petition No.1410/1998, therefore, stands disposed of in terms of the order
which would follow in this judgment. Rule is discharged.
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11 In Writ Petition No.4193/2016, the Workman had preferred
Complaint (ULP) No.32/2002 before the Labour Court challenging his
retrenchment dated 01.04.2001. By judgment dated 05.02.2010, the
Labour Court allowed the complaint and considering the fact that the
Workman had attained the age of superannuation taking into account his
date of birth as 06.08.1948, granted retiral benefits by declining back
wages. This was made effective from the date of his purported retirement.
The University challenged the judgment of the Labour Court
in Revision (ULP) No.27/2010. By the impugned judgment dated
27.11.2015, the Industrial Court allowed the revision petition and
directed the University to pay the shortfall in retrenchment compensation.
13 It is undisputed that the date of retrenchment of the
Workman is 01.04.2001 and he was paid retrenchment compensation of
Rs.11,392/- in 2001. The impugned judgment of the Industrial Court by
which the compensation of Rs.16,728/- was granted, which is shortfall in
compensation and should have been paid in 2001, has not been
challenged by the University.
14 Shri Shahane, learned Advocate for the University, has
strenuously relied upon the affidavit in reply dated 10.11.2016 filed
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through the Registrar of the University contending that the amount of
Rs.16,728/-, which is shortfall in retrenchment compensation, has been
deposited before the Industrial Court on 14.07.2016. He further submits
that as there was surplus manpower, the circular was issued on
16.01.2001 to reduce the manpower. An option to accept Voluntary
Retirement Scheme (VRS) was made available to all surplus daily rated
employees and several others. About 369 employees opted for VRS and on
accepting the wages, relinquished employment. Several others who did
not opt for VRS, were retrenched on 01.04.2001 which includes the
Workman herein.
15 Shri Shahane places reliance upon the judgment of the
Honourable Supreme Court in the matter of the same University, namely,
Mahatma Phule Agricultural University vs. Nashik Zilla Sheti Kamgar Union,
2001 (III) CLR 4, to contend that the University had bonafide calculated
the retrenchment compensation in 2001. It was only by the said judgment
of the Honourable Supreme Court dated 24.07.2001 which required the
University to recalculate the retrenchment compensation which it had
paid on 01.04.2001, as the University was made aware about the shortfall
in retrenchment compensation.
16 He strenuously submits that the Honourable Supreme Court
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did not direct the reinstatement of such retrenched employees on the
ground of shortfall in computing the retrenchment compensation. He
submits that the wages under the directions of the Honourable Supreme
Court in the judgment in Mahatma Phule Agricultural University (supra),
for an amount of Rs.1,30,503/- has already been paid and the back wages
for the earlier termination dated 17.08.1985 has also been paid.
17 Shri Barde, learned Advocate for the Workman, strenuously
submits that the law is that if Section 25-F of the Industrial Disputes Act,
1947 is not complied with, it is an incurable infirmity and no employer
can be permitted to cure such infirmity.
18 In my view, the law on retrenchment compensation is well
settled. It is crystallized that all three conditions under Section 25-F of the
Industrial Disputes Act, 1947 are axiomatic and are required to be
complied with scrupulously. However, this case has a peculiar background.
19 The University has calculated the retrenchment compensation
as on 01.04.2001 and has paid the said amount. It is only after the
Honourable Supreme Court delivered it's judgment in 2001 in Mahatma
Phule Agricultural University (supra) that the University was required to
recalculate the retrenchment compensation. The fact that the University
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has not challenged the Industrial Court's judgment and has deposited the
compensation amount of Rs.16,728/-, which is strictly calculated in the
light of the observations of the Honourable Supreme Court in the
aforesaid judgment, leads to a conclusion that the said amount of
Rs.16,728/- should have been paid to the Workman in 2001. The same
was not paid and therefore, the Workman had preferred Complaint (ULP)
No.32/2002 before the Labour Court. The Labour Court had allowed the
complaint on the ground of insufficiency in compensation and since the
Workman had attained the age of superannuation prior to the judgment of
the Labour Court, it granted continuity of employment on notional basis
till the date of retirement so as to extend him the retiral benefits.
20 In the peculiar facts as recorded above, it would be far
fetched to conclude that the University has intentionally or deliberately
paid lesser retrenchment compensation. Since the temporary employees
being entitled to 1/30th wages as were paid to the permanent employees,
was the formula that was deduced by the Honourable Supreme Court, that
the University was required to recalculate the compensation amount. Had
the said compensation been paid promptly before the Workman lodged his
ULP complaint in 2002, probably this litigation would not have been
dragged this far. As a consequence, the Workman was in litigation even
post retirement.
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21 Taking into account the totality of the facts and circumstances
as recorded above, I deem it proper to partly allow this petition by
quantifying compensation to be paid by the University to the Workman for
two reasons. Firstly, the amount of Rs.16,728/- should have been paid in
2001 which is 15 years ago and secondly, as a consequence of having not
paid the said amount, that the Workman had to resort to litigation. It also
needs to be noted that this is the second round of litigation of the said
Workman upto this Court.
22 Had the amount of Rs.16,728/-, which has been deposited by
the University on 14.07.2016, been deposited before the Industrial Court
at Ahmednagar in 2001, it would have fetched interest multi fold times in
the past 15 years. I am, therefore, rounding of the said compensation to
Rs.50,000/- (Rupees Fifty Thousand) taking into account the interest
component for the last 15 years. So also, since the Workman was dragged
into litigation and has been litigating for the last 15 years, I deem it
proper to award compensation of Rs.50,000/- (Rupees Fifty Thousand) for
the rigours of litigation suffered by him.
23 In the light of the above, this Writ Petition No.4193/2016 is
partly allowed. The impugned judgments of the Industrial Court and the
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Labour Court are modified by directing the University to pay an amount of
Rs.1 lac to the Workman within a period of TWELVE (12) WEEKS from
today by deducting the amount deposited before the Industrial Court. The
amount deposited before the Industrial Court can be withdrawn by the
Workman by producing tangible identity proof to the satisfaction of the
Additional Registrar of the Industrial Court. Rule is made partly absolute
in the above terms.
kps (RAVINDRA V. GHUGE, J.)
